Fall 2021 has already been a busy one. Although the COVID-19 Delta variant continues to spread, there are positive developments for independent schools: the Biden administration's announcement of a vaccination requirement for certain employers and schools, full approval of Pfizer's COVID-19 vaccine for those ages 16 and older, continued availability of the Pfizer vaccine under Emergency Use Authorization for those ages 12-15, and the anticipated approval under Emergency Use Authorization for the Pfizer vaccine for ages 5-11. With these new developments, independent schools are likely to prepare or revisit their existing COVID-19 vaccination policies. In this Q&A, we review some of the most common questions with which independent schools grapple, as they look to implement vaccination requirements.
What Does the Biden Administration's Announcement Mean?
On September 9, 2021, President Biden announced a six-part strategy to combat COVID-19. Below, we summarize the key provisions, of which independent schools should be aware.
Mandatory Vaccination or Weekly Testing
As part of this comprehensive strategy, President Biden announced that the Occupational Safety and Health Administration (OSHA) will issue an Emergency Temporary Standard for private businesses with 100 or more employees, including independent schools. As an Emergency Temporary Standard, this rule will avoid the mandatory public comment period, and will be reviewed on an accelerated timeline.
Under the Emergency Temporary Standard, private businesses with 100 or more employees – including independent schools – will be required to ensure that either (1) their employees are fully vaccinated against COVID-19, or (2) their unvaccinated employees undergo weekly COVID-19 testing, and produce a negative test for COVID-19 before commencing work. As part of this plan, OSHA is also developing an Emergency Temporary Standard that will require employers to provide paid time off for employees to get vaccinated, or to recover from any after-effects from receiving the vaccine. While OSHA has not yet issued the Emergency Temporary Standard, its publication – including additional guidance on implementing these requirements – is expected soon.
Calling on the States to Adopt Mitigation Measures for Schools
The Biden administration's September 9, 2021 announcement also included priorities for keeping schools safe and open for in-person learning, and advising all schools to consistently implement science-based prevention strategies as recommended by the CDC. As part of this plan, President Biden has called on the states to require vaccination for teachers and school staff. Notably, the District of Columbia has issued such a mandate, which is as equally applicable to independent schools as it is to public schools, as discussed here.
Similarly, the Biden Administration has called on schools to set up regular COVID-19 screening for students, teachers, and staff. Screening should be offered to students who have not been fully vaccinated when community transmission is at moderate, substantial, or high levels, and to teachers and staff who have not been fully vaccinated at all times, regardless of the level of community transmission.
President Biden has also directed the Department of Education to use these resources at its disposal, including initiating investigations into states that have prohibited mask mandates, in order to assess whether such mandates discriminate against students with disabilities. To date, the Department of Education has initiated investigations into the prohibition on mask mandates at schools in Iowa, Oklahoma, South Carolina, Tennessee, and Utah.
If Independent Schools are not Required to Mandate the COVID-19 Vaccine, May They Elect to Require the COVID-19 Vaccine for Employees and for Students?
Yes! As discussed, schools may require that their employees and students be vaccinated, subject to some potential exceptions relating to compliance with disability, religious antidiscrimination, and accommodation laws. Generally speaking, schools will be required to consider accommodations for employees who cannot receive the vaccine due to sincerely-held religious beliefs or medical issues, and will be required to consider accommodations for students who cannot receive the vaccine due to medical issues. However, schools should consult state law to determine whether they are required to accommodate students who cannot receive the vaccine due to sincerely-held religious beliefs.
When implementing a vaccination policy, schools will want to include:
- A date by which employees and students must provide proof of vaccination, or otherwise request an exemption
- A written explanation of any paid leave available to employees in order to be vaccinated or recover from any after-effects. Employees who are non-exempt should be compensated for time spent receiving the vaccine.
- A written explanation of excused absences available for students to receive the vaccine or recover from any after-effects.
- A discussion of the process employees and students should follow should they seek to request an exemption from the policy, including the requirement to engage in an interactive process to determine whether they qualify for an exemption.
May We Require Employees and Students to Provide Proof of Vaccination?
Yes! Schools may require their employees and students to provide proof of vaccination, regardless of whether they elect to mandate the vaccine, or they should strongly encourage employees and students to receive the vaccine. While it may not always be obvious, if a vaccine card appears to be fraudulent on its face, schools may want to partner with their health department to confirm. Schools should ensure that they keep vaccination cards in a separate, confidential medical file, just as they do any other related medical records.
Wait! What About HIPAA?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that requires the creation of national standards to protect sensitive patient health information. HIPAA's rules apply to "Covered Entities," which are limited to health care providers who electronically transmit health information in connection with certain transactions, health plans, including employer-provided group health plans that provide for or pay for medical care, and healthcare clearinghouses that convert health information from a standard HIPAA format to a nonstandard format, or vice versa. Most of HIPAA's rules also apply to "Business Associates," which encompass a Covered Entity's contractors or vendors who use or disclose individually identifiable health information in the course of providing services to the Covered Entity.
Notably, most employers are not considered to be Covered Entities. Maintaining records with employee health information, such as documentation regarding an employee's need for medical leave, does not make an employer a Covered Entity. Offering health insurance or any other type of group health plan does not make an employer a Covered Entity. Employers are considered to be separate legal entities from the group health plans they offer. The Plan is a Covered Entity, but the employer is not.
Still, vaccination status and vaccine cards are considered private information and should be treated as such. For example, parents do not have the right to know whether their child's teacher is vaccinated, and the school should not provide that information unless the teacher voluntarily discloses it. Schools may, however, advise parents as to the percentage of employees that are fully vaccinated.
How Should a School Accommodate an Employee or Student who Cannot Receive the Vaccine for Medical or Religious Reasons?
Schools will want to consider what kinds of accommodations they will be able to offer to potentially exempt employees and students that will not impose an undue burden on the School, or otherwise pose a direct threat to other employees or students. This determination will largely depend on the scope of an employee's duties, as well as whether and to what extent the School has implemented layered mitigation measures designed to reduce transmissions. Accommodations may include additional requirements for masking, more frequent COVID-19 testing, limitations on participation in school-related activities such as athletics or extracurriculars, or leaves of absence for employees.
The authors are grateful for the contributions of Imani Menard, a law clerk in Venable LLP's District of Columbia office.